Shownotes Transcript
Roe v. Wade didn’t give women anything. What it did do is give doctors the right to kill babies.
“Roe really isn’t about the woman’s choice... It’s about the doctor’s freedom to practice his profession as he thinks best.It was not woman centered. It was physician centered.” - Ruth Bader Ginsburg, University of Chicago lecture May 10, 2013
The media doesn’t tell you this. Very few people understand Roe. It is in fact an amalgam of two separate decisions that were then ‘conjoined’ by the Court. Roe v. Wade addressed a Texas
law. Doe v. Bolton dismissed the abortion laws of Georgia. On Jan 22nd, 1973, they were both handed down simultaneously and “conjoined” by the Court as one ruling. Many now call this conjoined action “Roe” or “the Roe regime.” Though they dealt with two different states, and each has very different tone, the net effect of the combined decision was to strike down not only those two states’ laws, but the laws of every other state as well!
In the Doe portion of the decision, the author, Justice Blackmun, inserted a special ‘health exception.’ He intentionally defined it in the broadest possible terms. The reasons need not be written down, but only exist, ‘in the judgement of the doctor.’ If the abortionist felt there may be any sociological or psychological implications for that woman’s motherhood, *“all of these things may be considered health. *(Roe and Doe @183). A physically healthy child could be killed inside of a physically healthy mother – throughout pregnancy – if his judgement called for it.
In dissent, Justice White summed up this late term, ‘psychobabble’ exception:
“… *for anyone of such reasons, or no reason at all, and without asserting or claiming any threat to life or health… [it was now to be legal for] any medical advisor willing to take up the procedure…. I dissent.” *(Roe and *Doe *dissent @221).
It’s funny how media analysts avoid any discussion of this ‘little’ exception.
Since then, the media narrative has reduced the debate, and simply summed all this up as, ‘a woman’s choice.’ The media is intent on simplifying issues for consumption. But such simplicity often comes at the cost of stultifying its consumers as well. That’s us.
If you examine her statement carefully, Justice Ginsburg was right: the conjoined, twin decisions of Roe and Doe are clear. The choice and decision are the abortionist’s alone. The woman, even if ‘uncomfortable,’ simply needs to go along with what ‘the doctor’ has in mind. A killing profession was pulled from centuries of shadows. It was given license and legitimacy on that day.
For millennia, the Hippocratic Oath had unequivocally condemned this killing of vulnerable children. And legally, abortion has always been frowned on by the law since at least Common Law times and in many cases long before that. But Blackmun and his fellows declared the healing profession turned on its head. Doctors were now free to be fully licensed killers. Their personal thoughts and judgments considered supreme in life or death.
The Oath and its centuries of influence on law and society were pronounced dead via Roe and Doe. ‘If babies are to be killed, then a professional will do it.’
Today’s USSC
In the oral arguments of this December 1st, Justice Kavanaugh very politely complimented abortion advocates, but summed up the challenge in contemplating Roe.
There are two competing interests and legal principles at stake, he said. The one, “the liberty interest,” (or ‘right to choose’) was forcefully and effectively presented by the Solicitor General of the United States, who was arguing the case. He gave her a ‘hat tip.’ But the other competing interest is the right to life which is at stake. These two interests exist in direct variance. We cannot ‘split the difference’: either one or the other will dominate. They cannot,“both win.”
The other five pro-life Justices who are oft-times silent, also offered questions and comments - yes, each spoke – and confirmed their pro-life positions.
The three, abortion-supporting Justices: Kagan, Sotomayor, and Breyer, not only commented, but with acerbic resignation seemed to ooze bitterness. Their jibes about contrary ‘political decisions,’ and the ‘danger to the court;’ their affection for ‘court precedence’ all seemed to aim directly at influencing the Chief Justice. Their implications: ’If you do this, our Democrat Party may need to change the structure of this Court. We will pack it.’
Chief Justice Roberts, known to be very susceptible to pressure regarding the image and nature of the Court, made statements that seemed to be supportive of the Mississippi law and of its 15-week limit. But this desire to ‘split the difference,’ while seeming to ‘cross the line’ that Roe had drawn, is in fact in direct variance with Justice Kavanaugh’s open statement that you can’t somehow cut the baby in two’ and ‘allow both the liberty interest and the right to life be given equal weight.’
While there are six openly pro-life votes on the Court, I urge you not to use the simplistic media analysis: ‘It’s a black and white, apolitical-head count.’ Yes, the hearing bodes well for life. But I sat with colleagues in 1992 as we read the result of the Casey decision. Remember, that Pennsylvania law was, “going to bring down Roe.”
But Casey itself was, as they say in boxing, a split decision.
Few of the judges really agreed. The result was that *Casey *had to be ‘cobbled together.’ At the end of the day, Roe was in fact still upheld! Each of the justices had gone in different, nuanced directions. This became what the court officially calls a “joint decision.” Some judges upheld portions of the Pennsylvania law yet insisted on striking others. There was no clear majority.
Justice Blackmun, Roe’s author, was still on the court in 1992. Predictably, his decision in Casey proudly upheld Roe.
Back in Casey, then Supreme Court Chief Justice William Rehnquist voted with a plurality - Scalia, White, and Thomas, to ‘adjust’ Roe ( he did not have the votes to overturn.) But he attempted to continue to dismantle it.
The Court jettisoned the false and deceptive ‘trimester’ framework, (Has the media EVER told you that the trimester system was long-ago ruled meaningless and arbitrary? The Court also conceded that there was not in fact, a‘fundamental right’ to abortion. Does ANY local, or even national reporter ever comment on that? Nope. The actual status of abortion law is continually misrepresented by a simplistic media.)
But after Casey, and despite loss of credibility, Roe still stood. But in a simplistically meaningless salute to ‘choice’ and the legal folly of stare decisis (the legal insistence that a ‘previous decision continue to stand’). Chief Justice Rehnquist stated in his ruling,
“Roe continues to exist, but only in the way that a storefront on a western movie set exists: a mere façade to give the illusion of reality... Behind the façade an entirely new method of analysis without any roots in constitutional law…” Casey Joint Decision, 1992
For us today, the question for 2022 is: What will this Court now do?
You just read that Chief Justices will throw their decisions in surprisingly unlikely corners - this to help frame and ‘craft’ the final decisions their colleagues may be offering.
Will Justice Roberts, widely known for such politicking, try that? Will he attempt to ‘split the difference’ yet again? But with five other solid lifers, could he? I fully expect the old façade known as Roe to topple. This diseased tree will indeed fall. But in which direction?
A bigger issue, that is almost never addressed, undergirds this entire debate: “Will doctors be free to continue in their now 50-year-old license to do what they want, even to kill? Justice Ginsburg, and a handful of others, knew this issue just never gets discussed.
Whatever happens in the coming decision, you can expect the major media to enjoy the controversy. Just don’t expect them to get it right.
Here’s a nice thought: the media has stopped talking about the Texas abortion law heard by the court two weeks earlier. But that law is powerful. The Court has allowed it to remain in effect. Abortions have come to a halt in Texas.
So, the media has joined in the terrified silence of the abortion industry regarding that law.
Wouldn’t it be nice if the Court decided to rule on Texas as well? Then, as they did in 1973, perhaps issue a conjoined decision, but this time protecting the right of unborn children to be protected and honored under the law?
Brian Johnston is the author of Evil Twins - Roe and Doe: How the Supreme Court Unleashed Medical Killing)* *available on Amazon) and wherever fine books are sold.